25 May 2020
Introduction
This article outlines the implications of the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) (the Bill) on the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act). The Bill was passed with amendment on 20 May 2020.
The Bill has:
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Introduced an industrial manslaughter offence;
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Clarified the appointment requirement for statutory office holders; and
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Clarified costs orders in relation to criminal proceedings before the Industrial Magistrates Court.
We discuss each of these below in more detail.
Introduction of industrial manslaughter
The CMSH Act will hold employers or senior officers liable for actions or omissions involving criminal negligence (recklessness or gross negligence) which result in worker fatalities.
The CMSH Act now includes an offence for industrial manslaughter for an employer or senior officer where a worker dies:
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In the course of undertaking work or is injured and later dies; and
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The employer or senior officer’s conduct causes the death; and
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The employer or senior officer is negligent about causing the death.
The maximum penalty for an individual is 20 years and 100,000 penalty units for a body corporate ($13.345 million).
Industrial manslaughter will be an indictable offence and the usual criminal procedural requirements will apply, including the onus of proof. The guideline for industrial manslaughter prosecutions will be the same as those for manslaughter under the Criminal Code. The decision to prosecute will be made by the independent Work Health and Safety (WHS) prosecutor.
Similar to other manslaughter offences, as an indictable offence, industrial manslaughter under the CMHS Act will have no time limitation period for prosecution. Importantly, the defence of accident does not apply.
Clarification of appointment requirements for statutory office holders
The Bill amends the CMSH Act to clarify that only persons who are employees of a coal mine operator may be appointed as certain statutory office holders.
The following statutory roles can only be occupied by employees (not contractors) of coal mine operators:
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Site Senior Executives (SSE), including anyone appointed to that role during a temporary absence of an SSE;
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Open Cut Examiners (OCE);
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Underground Mine Managers (UMM), any alternative UMM or any persons appointed to be responsible for the control and management of underground activities when the UMM is not in attendance at the mine;
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Persons appointed to have control of activities in one or more explosion risk zones in an underground mine;
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Persons appointed to have control of mechanical and electrical engineering activities of an underground mine; and
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Ventilation Officers and anyone appointed to that role in the absence of the Ventilation Officer.
Maximum penalties of 500 penalty units ($66,725.00) apply for coal mine operators who fail to ensure compliance with the requirements. A transitional period of 18 months for compliance has been adopted to ameliorate the impacts on any existing statutory office holders who currently have a different employment status, such as contractors.
Clarification of costs orders
The Bill amends the CMHS Act to provide that costs orders for representation may be made for criminal proceedings before the Industrial Magistrates Court. The Bill also retrospectively validates costs orders made by an Industrial Magistrates Court in relation to a proceeding for an offence against the Act prior to December 2014.
For further information, please contact:
Aaron Anderson, Partner, Herbert Smith Freehills
aaron.anderson@hsf.com
